“If that fact alone is sufficient to find a willful violation, especially in a context of a summary judgment motion, the statutory distinction between willful and non-willful penalties becomes irrelevant,” Ziering said. She pointed out that the decision in Flume said that if every taxpayer who signs the return is presumed to know of FBAR requirements, "it is difficult to conceive of how a violation could be non-willful." Ziering added that even in the Internal Revenue Manual, "the IRS acknowledges that it needs additional factors to establish willfulness. However, in litigation, this single act seems to become a predominate indicia of willfulness.”

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